Why Open Content Matters

Knowledge must forever govern ignorance, and a people who would be their own governors must arm themselves with the power which knowledge gives. Popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy--or perhaps both." -- James Madison, 1815

Don't be misled by the e-commerce hiccup;
we're on a digitization juggernaut. Just a few years ago,
leather-bound DayTimers dominated business meetings, but no longer;
today, you'll find a preponderance of Palm Pilots. As for that
novel or newspaper you're reading, doubt it not: digitization is
coming. Of course, you needn't worry about print media disappearing
overnight; if anything, the Internet is fueling a
renaissance
of newspaper reading. Beneath the surface, though, print
media have changed. The underlying technology is already digital,
from the point of creation to the means of national and
international distribution. As publishers are trying to capitalize
on their digitized product, they're pushing the US Congress to
enact legislation granting them what amounts to real property
rights in perpetuity over printed material--rights in which
even
the authors do not share. Coupled with these disturbing
legal developments, the digitization of print media archives
presages the rise of a world in which access to basic facts and
scientific knowledge is parceled out by a state-protected
pay-per-view industry--and as you'll learn in this article, that's
bad news for democracy. If for-profit copyright holders get their
way, democratic notions concerning public access to factual
information may seem just as quaint as a DayTimer seems to the
Palm-toting digerati.

In this article, I'll argue that the open
content movement--a movement to release written
documents with a license similar to the
GNU General
Public License (GPL)--is beginning to stir for precisely
the same reasons that launched the Free Software movement in the
1980s: the realization that a for-profit industry was about to lock
up indispensable public knowledge and, in so doing, pose a grave
threat to the advancement of knowledge and human welfare. This
time, the stakes are, if anything, even greater. If the social
goals of the Free Software movement mean anything to you,
please--read on. (Fair warning: this is a bit long, but I hope
you'll conclude it's worth the effort.)

WHAT'S THE PROBLEM?

In what follows, I'll argue the healthy democracy depends not
only on the ability of citizens to access facts and ideas freely,
but also to produce derivative works that
substantially incorporate and rework the means of
expression found in copyrighted works. Be
forewarned: by contemporary standards, my position is a decidedly
fringe perspective, notwithstanding the fact that, in my view, it
aptly characterizes the view that prevailed during the American
republic's first century (a point to which this essay returns).

To be sure, it's widely agreed--even today--that the free
flow of facts and information is important to a democracy. Vital to
a successful democracy is a flourishing civil
society, a "sphere of voluntary, nongovernmental
associations in which individuals determine their shared purposes
and norms"
(Netanel
1996; I follow his argument closely here). A robust civil
society fosters an embedded and self-perpetuating "democratic
culture" that make it resistant to tyranny. But such a culture
cannot endure in the absence of free access to
facts--facts about what has happened, what the
government is doing, how decisions were made, who benefits from
such decisions--and the ideas that enable
people to link these facts into meaningful patterns by which they
can engage in positive political action. Of course, copyright makes
facts and ideas widely available by providing incentives for
authors and publishers to make them so; copyright furthers this
purpose by giving no protection to the facts and ideas, but only to
the author's unique expression of these facts and ideas, in a
copyright work. From this perspective, voiced by neoclassical
economists and legal scholars influenced by the neoclassical
viewpoint, extending the scope and duration of copyright can only
enhance the contribution made by copyrighted works to democratic
deliberation.

But I would like to argue that democratic deliberation may
legitimately involve appropriations of a work's expression as well
as the underlying facts and ideas. To rob an idea of its most
eloquent expression--consider "I have a dream" or "Ask not what
your country can do for you; ask what you can do for your
country"--is to rob it of its life and force, as
Netanel
(1996) compellingly argues. This point is especially valid
when one considers artistic or popular works that can advance
powerful political ideas in a compelling ways. In addition, the
purposes of democratic political deliberation are sometimes best
served by permitting the appropriation and complete reproduction of
an entire copyrighted work. For example, in
1971, the New York Times started a series of
articles that reproduced the text of a secret Pentagon study of the
Vietnam conflict, now known as the Pentagon
Papers. Under President Nixon's direction, the US
Justice department attempted to suppress the publication of the
Pentagon Papers on national security grounds; however, the US
Supreme Court subsequently ruled that the constitutional guarantees
given to the freedom of the press overruled other considerations,
including national security. What is more, the exigencies of
political deliberation required the publication of the
full text of the Pentagon
Papers, for only then would citizens be able to judge
all the nuances of the compelling question placed before them: the
wisdom of continuing to support the South Vietnamese regime.

Today, it's not entirely certain the Pentagon
Papers would see the light of day, and a Justice
Department bent on suppressing them would doubtlessly turn to
copyright law rather than appealing to national security concerns.
Consider what's happening to Free Republic
(http://www.freerepublic.com;
for a legal scholar's analysis, see
Benkler
1999).

Unlike most news-oriented web sites, Free Republic's
readership is growing at an explosive rate, and the reason is
partly that, like other equally successful experiments in
open
media, Free Republic makes full and innovative
use of the Web's potential as a new communications medium. The term
open media refers to news-oriented sites that
republish news articles in a clearly defined intellectual context
and openly invite reader commentary
(Katz
2001). But Free Republic goes much further than most open
media sites, and that's why it's in trouble. Users are permitted to
post news articles in their entirety. One
could argue that such appropriations are entirely legitimate within
the scope of US copyright law, as it permits uncompensated excerpts
totaling 100% of the original copyrighted material when doing so is
essential for effective public analysis and political deliberation.
And Free Republic's readers post the news articles in the context
of an extremist, right-wing narrative in which the media is seen to
be little more than the tool of the "liberal establishment"; for
example, Time is described as "Ted Turner's
Commie Rag". The context demands publication of the entire text,
which readers then dissect in a way that often requires exacting
attention to a subtle turn-of-phrase buried in the midst of the
article. In sum, Free Republic's success in fostering a forum for
political deliberation hinges on its readers' ability to
appropriate copyrighted works without payment or permission,
republish them and utterly transform them in the context of a
causticly critical narrative that satirizes and ridicules the
"liberal media," and lays bare the full text of the articles for
massively invasive surgery on Free Republic's operating
table.

Although I recognize that Free Republic is indeed fostering
the spirited debate and deliberation that is part and parcel of a
healthy democracy, I personally disagree, vehemently, with just
about everything I've read on the site. That's why I'd love to
start a neoliberal site that subjects the conservative press to the
same, ungentle treatment, but I don't dare. Thanks to a lawsuit
brought by two major newspapers (Los Angeles
Times and New York Times), Free
Republic's days seem to be numbered; a Federal judge has already
issued a
summary
judgment forbidding Free Republic from reproducing articles
from these newspapers. It seems likely that Free Republic will have
to stop reproducing news articles in their entirety, or, more
likely, the sites' creators will have their personal finances
destroyed in a series of legal battles and will be forced,
eventually, to close up shop.

Admittedly, Free Republic is difficult to defend. Court
deliberations reveal that Free Republic's founder hoped to profit
financially from the huge numbers of web users attracted by the
site's polemical fireworks, fueled by the appropriation of others'
uncompensated work. Moreover, the aggrieved newspapers argued that
Free Republic's actions would cut into the market--minuscule, by
most accounts--for their pay-per-view archives. Still, these
objections ignore the larger issues at stake. To argue that one
must eschew profits in order to foster serious political
deliberation places citizens at a serious, if not fatal,
disadvantage vis-à-vis wealthy media corporations. Should
the New York Times have been forced to
reincorporate as a nonprofit in order to publish the
Pentagon Papers? Moreover, what interests Free
Republic's readers is today's news, and the site's commentaries on
today's news, not yesterday's. I seriously doubt whether either of
the plaintiffs could prove they're suffering a loss of income from
their lightly-used archives due to Free Republic's activities. But
the newspapers reply that what counts is the principle at stake:
the right of these newspapers to have exclusive control over the
distribution of their "properties" in the new, networked
medium.

In the end, the Free Republic case shows why the site's
extremist, right-wing perspective on the so-called "liberal media"
is flat out, dead wrong. If the "liberal media" really were driven
by pinko political commitments, the Times of
our largest cities would act in such a way that neoliberal
commentary sites modeled on Free Republic could emerge without
fetters. Instead, they're suing Free Republic, and the result sends
a chilling message to anyone who would like to use emulate Free
Republic's lead. Why are the newspapers attacking Free Republic?
Call me cynical if you like, but in my view, the "liberal media"
are much more interested in the bottom line than promulgating a
political perspective. As media executives understand the
opportunities available to them, they must attack any attempt to
horn in on any competing claims to what they see as their exclusive
right to market their "properties" on the Internet. That is
precisely why the same newspapers are doggedly defending themselves
against a lawsuit brought by freelance authors, who claim they
deserve a slice of the Internet take.

To sum up my argument, I take issue with the commonly
asserted argument that copyright law adequately serves the goal of
democratic deliberation by ensuring the diffusion of facts and
ideas throughout society. Genuine political deliberation may
necessitate the appropriation and transformation of copyrighted
works in ways unkind to authors and copyright holders. To the
extent that fostering democratic deliberation matters, copyright
law should strike a balance between the interests of authors and
copyright holders, who naturally seek a return from their works,
and the legitimate interests of a people who would govern
themselves. As the following section explains, there's a compelling
argument that US Copyright struck exactly the right balance during
its first century. Since then, and particularly since the 1970s,
copyright law has been hijacked by wealthy copyright holders, and
the consequences--illustrated by Free Republic's persecution--are
not healthy for democracy.

Comment viewing options

How are you. Always be nice to those younger than you, because they are the ones who will be writing about you.
I am from Indonesia and know bad English, give please true I wrote the following sentence: "The article also provides information."

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